Sri A N Shivakumar vs Sri J M Verabhadraiaha Swamy
2022 Latest Caselaw 4712 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF MARCH, 2022

                          BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

    WRIT PETITION No.24701 OF 2017 (GM-CPC)

BETWEEN:

SRI.A.N.SHIVAKUMAR
S/O A.S.NAGAPPA
AGED ABOUT 50 YEARS
R/AT NO.525, 1ST MAIN,
MARUTHI TEMPLE ROAD,
KUVEMPUNAGAR
MYSORE CITY -570 001                      ..PETITIONER

(BY  SRI.V.G.KUMBAR,     ADVOCATE   FOR     SRI.RAMACHANDRA,
ADVOCATE)

AND:

1. SRI.J.M.VEERABHADRAIAHA SWAMY
S/O J.M.RUDRAIAH
AGED ABOUT 65 YEARS,
R/AT NO.753, 10TH MAIN,
12TH CROSS, TONACHI KOPPAL
MYSORE CITY-570 001.

2. MYSORE CITY CORPORATION
CORPORATION OFFICE,
NEW SAYYAJI RAO ROAD,
MYSORE CITY -570 001.                 ..RESPONDENTS

(BY SRI.P.NATARAJU, ADVOCATE FOR C/R-1,
SMT.GEETHA DEVI M. PAPANNA, ADVOCATE FOR R-2)
                                2
                                              W.P.No.24701/2017




                             ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue writ in the nature of
certiorari quashing Annexure-H the common order dated
29.09.2016 passed by the Principal I Civil Judge and JMFC,
Mysore in O.S.No.1029/2016 on I.A.No.2 and I.A.No.3 filed by
the respondent No.1 and Annexure-L the common order dated
18.04.2017, passed by the IV Additional Senior Civil Judge,
Mysore in M.A.No.87/2016 and thereby dismiss the same.

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                          ORDER

The present respondent No.1 as plaintiff had filed a

suit in O.S.No.1029/2016 in the Court of the learned

Principal I Civil Judge and JMFC at Mysuru, (hereinafter for

brevity referred to as "the Trial Court"), for the relief of

injunction restraining the first defendant or any one

claiming through him from constructing structure contrary

to the approved plan in the plaint schedule property and

also for a direction to the defendants to demolish the illegal

construction already undertaken by the first defendant in

violation of the approved plan and license. Along with the

suit, the plaintiff filed I.A.No.2 under Order 39 Rules 1 and

W.P.No.24701/2017

2 of Code of Civil Procedure (hereinafter for brevity referred

to as "CPC") for an order of temporary injunction restraining

the first defendant from further constructing in the plaint

schedule property. A month later the plaintiff also filed

I.A.No.3 under Order 39 Rules 1 and 2 CPC for an order of

status-quo ante seeking direction to the first defendant to

dismantle, demolish and remove the illegal construction

alleged to have been undertaken by the first defendant on

the eastern set back of the plaint schedule property.

2. The first defendant filed his statement of

objections. In the mean time the Court Commissioner was

also appointed and he filed his report measuring the suit

schedule property. After hearing both the sides, the trial

court partly allowed IA.No.2 and allowed I.A.No.3 and

directed the first defendant to demolish and remove the

staircase on the eastern set back of plaint schedule property

by an order of mandatory injunction. Further the first

defendant was restrained from reconstruction or further

construction upon the stair case upon eastern side set back

W.P.No.24701/2017

of the plaint schedule property by an order of temporary

injunction. Aggrieved by the said order, first defendant

filed an appeal under Order 43 Rule 1(r) and 2 of CPC in

M.A.No.87/2016 in the court of the IV Additional Senior Civil

Judge and JMFC, Mysuru. Said court by its Judgment dated

18.04.2017 dismissed the miscellaneous appeal however

confirmed in part the impugned order passed by the learned

trial court under I.A.No.2 and I.A.No.3 and cross objection

filed by the respondent No.1 before it under Order 43 Rule

2 of CPC was allowed and order passed on I.A.No.3 by the

trial court was modified to the effect that appellant was

directed to remove and demolish the stair case and the

landing slab to the eastern side. Rest of the impugned

order passed by the learned trial court was thus remained

unmodified. Aggrieved by the same, first defendant in the

trial court has filed this writ petition.

3. After hearing the counsel from both the sides, it is

inferred that the sum and substance of the contention of the

plaintiff in the trial court is that alleged unauthorized further

W.P.No.24701/2017

construction in the form of putting up the stair case on the

eastern set back of the plaint schedule property which falls

to the western side of the plaintiff's property has caused

obstruction not only to the air, light but more particularly to

the privacy of the plaintiff since any one climbing on the

stair case of the first defendant's property which is put up

so near and close to the property of the plaintiff would

make the user of the stair case to peep into the windows

that are placed facing western side of the plaintiff's

property. Thus, it obstructs and causes obstruction to the

privacy and personal rights. The trial court during the

pendency of the application secured court commissioner's

report which has given the details of the alleged violation of

the plan in the form of alleged putting up of the stair case

on the eastern side of the plaint schedule property which is

on the western side of plaintiff's property by the first

defendant. However, he mentioned that on the eastern side

of the first defendant property where the stair case is put

up (it falls on the western side of plaintiff's property) there

is a space of 5 feet 6 inches in which a width of 4 feet is

W.P.No.24701/2017

used for putting up stair case 11 steps from the ground to

the landing first slab. After 4 feet width stair case 1 feet 6

inches open space is left in the first defendant property

towards the property of the plaintiff.

4. In the light of the above commissioner report, the

trial court coming to a tentative opinion that the

construction of stair case in the set back area is violation of

the approved plan, ordered for demolishing of said stair

case so as to leave set back of 3 feet 3 inches on the

eastern side of plaint schedule property. Even the first

appellate court in miscellaneous appeal did not vary or

modify the said order directing demolition of the stair case.

5. While hearing the petition from both sides, it was

brought to the notice of the court that the commissioner

has also stated in his report that the first defendant has

stated before him that the Comprehensive Development

Plan permits the owner of the site to put up the stair case in

the set back area. However as submitted by the learned

W.P.No.24701/2017

counsel from both sides it is the contention which requires

detailed hearing in the original suit. After deliberations, both

the learned counsel concede to the fact if the first defendant

is compelled to demolish the stair case in its entirety firstly,

it would deprive any access to first floor which is already

according to him is complete in construction and having

occupied by him. As such, demolition of the stair case

would make first floor and other portion of the building

totally unusable. Secondly, in case if plaintiff could not

succeed in the suit after trial, then the demolition of stair

case cannot be restored easily without incurring labour and

expenses by the concerned parties.

6. In the light of the above, after some deliberations

learned counsel from both the sides arrived at a opinion and

understanding and made a submission before this court to

the effect that in the stair case put up by the first defendant

on the eastern side of plaint schedule property which is

towards western boundary of the plaintiff's property, the

first defendant would at his cost, expenses and labour block

W.P.No.24701/2017

one feet 9 inches width of the entire stair case on the

extreme east side of the stair case so that the said 1 feet

9 inches proposed blocking area in addition to 1 feet

6 inches space already said to have been left by the first

defendant on the eastern side of his property would in total

become 3 feet 3 inches space so that there would be no

complaint of illegal construction in the set back area it is

usable by the user of the stair case. Both the sides submit

that the said blocking of the stair case to 1 feet 9 inches

would be by placing the hollow cement bricks or some such

material fastened to the steps of the stair case with proper

cement and to a height of between 30 inches to 36 inches

or to the existing height of the side wall of the stair case on

the eastern side of the plaint schedule property which ever

is lower. Said structure to remain unaltered or unremoved

by the first defendant pending disposal of the original suit

or modification of order on I.A.No.2 and I.A.No.3 passed by

the trial court, during the pendency of the said suit.

W.P.No.24701/2017

7. The above submission made by the learned counsel

from both the sides appear to be fair in the alleged facts

and circumstances of the case and would not cause any

inconvenience or prejudice rights of either of the parties.

As such, purely as a temporary measure said submission on

both sides to be taken on record and directing the first

defendant to proceed with the said suggestion in its true

sense at the earliest but not later than three weeks from

today, the writ petition can be disposed of. Ordering

accordingly, the writ petition is disposed of.

8. Considering the age of the original suit, the trial

court disposing of the main suit itself on its merits at the

earliest point of time but not later than eight months from

today, is highly appreciated.

Sd/-

JUDGE

SBN